No-Fault and Beyond
Schedule this week
Wednesday Class - 8:00am - 9:40am - No Fault and Beyond Office Hours - 12:00pm - 1:00pm
Thursday You can use your laptops in class on Thursday Class - 10:10am - 11:50am - No Fault and Beyond / Review Office Hours - 12:00pm - ???
For alternatives to tort, what types of questions are fair game?
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Insurance
For a given fact pattern:
- How does insurance affect (or not affect) the tort litigation?
- How does insurance change incentives of the parties?
- How does insurance change our assessment of the fairness and efficacy of a particular tort law rule?
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Workers’ Compensation
For a given fact pattern:
- Can the plaintiff pursue a tort claim or is workers’ compensation the exclusive remedy?
- What can the plaintiff recover from workers’ compensation compared to tort?
- With multiple defendants, what are the plaintiff’s options for redress?
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Policy Questions
For a given aspect of tort law:
- How does an alternative to tort fare at addressing a particular problem compared to tort law?
- Should tort law adopt this policy or rule from an alternative to tort?
- In crafting law that addresses personal injury and accidents, what should our values and goals be? What rules should we adopt?
Three Types of Policy Questions
- Explicit (e.g., asking your thoughts on a proposed statutory scheme)
- Common law development
- Substantive tort law rules asks for court to make a policy determination
How to answer a policy question?
- Pay attention to the task specified in the question
- Know that doctrinal rules tell you what the law is, but your job is to argue for what the law should be
- Policy questions are thorny, difficult, wicked problems and should be treated as such
- There are always tradeoffs, costs and benefits
- Not all values can be maximized
- Your job is to argue for the optimal balance, not to argue that all goals have been achieved
- Opportunity to bring in theory (corrective justice, law and econ, etc.), but good answers ground that theory in the particulars of the question.
Workers’ Compensation
The “Unholy Trinity” of Common Law Defenses
- Fellow servant rule
- Contributory negligence
- Assumption of risk
The Bargain of Workers’ Compensation
No fault
and
Exclusive remedy
Third-party claims
Rule: Employee can file a workers’ compensation claim against their employer but workers compensation’ does not cover third parties.
Hypothetical: Gladys Escola is a waitress. While serving a Coca-Cola beverage at work, the bottle explodes in her hand, injuring her hand. She needs surgery and will be unable to work for months.
What’s your legal advice for her?
Big Picture: Workers’ Comp vs. Tort Law
Deterrence
Compensation
Administrative Cost
Equity
Ideology
Does tort law have an ideology?
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of Conduct | ??? | ??? ??? | ??? |
| Causal Connection | ??? ??? | ??? ??? | ??? ??? |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal Connection | ??? ??? | ??? ??? | ??? ??? |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | ??? |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | - Employee was outside “scope of employment” |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | - Employee was outside “scope of employment” |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) |
No-Fault Systems / Compensation Funds
Common features:
- Narrow category of injury
- Reduced fact-finding and proof requirements
- Fixed recovery amounts
- Insurance-like funding rather than individual defendant-to-plaintiff payouts
| - | Torts | Workers’ Comp | No-Fault Funds |
|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all |
9-11 Fund
Unique characteristics:
- created after the harm, not in anticipation of harm
- individualized approach to economic loss
- tort-like awards for noneconomic loss
- low administrative costs
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | ??? |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | -??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | - Terrorism |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | - Terrorism |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | - Full economic damages up to 98th percentile of wage earners - Noneconomic losses compensated in full |
New Zealand
Total tort reform
Common law torts for accidental injury are abolished
All accidental injuries now covered under a no-fault scheme:
— unlimited medical expenses
— fixed compensation for lost earnings
— lump sums for lost body parts and pain and suffering
Doing Away with Tort Law
Stephen D. Sugarman
Proposal:
- No more tort law
- Compensation: Expanded safety net (public and private)
- Deterrence: Regulatory state
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Muss Es Sein? Not Necessarily, Says Tort Law
Anita Bernstein
A defense of tort law as progressive. How so?
Compared to all other fields of law, tort law
- empowers the vulnerable to challenge the powerful
- gives plaintiffs space for creative pleading
- imposes individual accountability on the powerful
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